Centrify Corporation v. Quest Software, Inc.

Filing 123


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 CENTRIFY CORPORATION, 5 6 7 8 9 No. C 10-3873 CW Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR RELIEF FROM CASE MANAGEMENT SCHEDULE (Docket No. 108) v. QUEST SOFTWARE, INC., Defendant. ________________________________/ United States District Court For the Northern District of California 10 11 Plaintiff Centrify Corporation seeks relief from the case 12 management order’s deadline for fact discovery for the limited 13 purpose of deposing a representative of third-party company Bank 14 of America, a customer of Defendant Quest Software, Inc. 15 Defendant opposes the motion. 16 The Court has taken the matter under consideration on the papers. For the reasons set forth 17 below, the Court GRANTS Plaintiff’s motion. 18 BACKGROUND 19 20 At the December 14, 2010 case management conference in this 21 case, the fact discovery deadline was set as September 1, 2011. 22 Docket No. 33. 23 24 On July 1, 2011, Plaintiff served its first interrogatories on Defendant. Sandrock Decl., Ex. 1. In Interrogatory Seven, 25 Plaintiff asked Defendant, inter alia, to identify the names of 26 customers who were sold the accused product and all documents 27 28 relating to such sales. Id. at 7-8. In Interrogatory Eight, 1 Plaintiff asked Defendant to identify and describe all non- 2 privileged documents and communications between Defendant and any 3 third party, including customers and potential customers, relating 4 to the accused feature. 5 6 Id. at 8. On August 3, 2011, Defendant responded to Plaintiff’s interrogatories. Armon Decl., Ex. G. In response to 7 Interrogatory Seven, Defendant did not identify any customers by 8 9 name and instead only identified several documents that it stated Id. at 14. In response to United States District Court For the Northern District of California 10 were relevant to the interrogatory. 11 Interrogatory Eight, Defendant stated, among other things, “Quest 12 has produced a large number of communications with Bank of America 13 relating to the subject matter of this Interrogatory.” 14 In other interrogatory responses, Defendant referred to “Quest Id. at 16. 15 customers” who use the accused features. Id. at 20. 16 On August 12, 2011, after Plaintiff requested that Defendant 17 18 supplement its responses, Defendant informed Plaintiff “that the 19 only ‘customer’ referred to in its interrogatory was Bank of 20 America.” 21 Bank of America in North Carolina on August 18, 2011. 22 Decl., Ex. 3. 23 Sandrock Decl. ¶ 4. Plaintiff served a subpoena on Sandrock On August 22, 2011, Defendant amended its response to Plaintiff’s first set of interrogatories to state, “Based on 24 the information presently available to Quest, Bank of America is 25 26 the only domestic customer that uses the form of Mapped User 27 functionality that Centrify accuses of infringement.” 28 Reply Decl. ¶ 2. 2 Sandrock 1 On August 31, 2011, Bank of America moved to quash 2 Plaintiff’s subpoena. 3 Bank of America had so moved, because Defendant stated that 4 “Centrify indicated that it was unable to confirm a deposition 5 date for Bank of America, but that it expected the deposition to 6 It is not clear whether Defendant knew that proceed within days or, at most, a week or two.” Armon Decl. 10. 7 After discussion on September 1, 2011, Defendant told Plaintiff in 8 9 an email that it “is premature for Centrify to file a motion United States District Court For the Northern District of California 10 seeking to extend the discovery period for the purpose of deposing 11 Bank of America,” because at that point, “Centrify is unable to 12 identify the length of its proposed extension.” 13 Ex. H. 14 extension should have been filed prior to the close of fact Armon Decl., Defendant also said that it would not argue a motion for 15 discovery, if a motion became necessary, and that it would not 16 oppose a “short extension” of the fact discovery period “solely to 17 18 depose Bank of America and if the extension does not unfairly 19 prejudice Quest or affect other case deadlines.” 20 October, while the motion to quash was pending, Defendant proposed 21 potential dates for the Bank of America deposition, asking that it 22 be scheduled at a time convenient for the parties and suggesting 23 Id. In late that the deadlines for expert reports be pushed back to 24 accommodate the deposition. Sandrock Decl. ¶ 8. 25 26 On October 28, 2011, the United States District Court for the 27 Western District of North Carolina granted the motion to quash, 28 finding the subpoena overbroad. Sandrock Decl., Ex. 5. 3 Centrify 1 re-issued the subpoena on November 7, 2011. 2 Ex. 6. 3 protective order in the Western District of North Carolina, 4 seeking to prevent the deposition from going forward on the basis 5 of the schedule in the instant action. 6 Sandrock Decl., On November 18, 2011, Defendant filed a motion for a Sandrock Decl., Ex. 7. On November 21, 2011, Bank of America also filed a motion to quash 7 Plaintiff’s subpoena and for a protective order, also based in 8 9 part on the schedule in the instant action. See Centrify Corp. v. Quest United States District Court For the Northern District of California 10 Ex. 8. 11 Software, Inc, Docket No. 3:11-mc-00177 (W.D. N.C.). 12 These motions are pending. Sandrock Decl., Plaintiff filed this motion on November 23, 2011, seeking 13 relief from the case management order’s deadline for fact 14 discovery for the limited purpose of deposing a Bank of America 15 representative. Plaintiff also filed a motion to shorten time on 16 the briefing and hearing schedules for the instant motion, which 17 18 this Court granted in part and denied in part on November 23, 19 2011. 20 21 22 23 Docket No. 110. LEGAL STANDARD Federal Rule of Civil Procedure 16(b) provides that a case management schedule can be modified upon a showing of good cause and by leave of the district judge. The Ninth Circuit has stated 24 that the “‘good cause’ standard primarily considers the diligence 25 26 of the party seeking the amendment. The district court may modify 27 the pretrial schedule ‘if it cannot reasonably be met despite the 28 diligence of the party seeking the extension.’” 4 Johnson v. 1 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) 2 (quoting Fed. R. Civ. P. 16 advisory committee's notes (1983 3 amendment)). 4 the party opposing the modification might supply additional 5 reasons to deny a motion, the focus of the inquiry is upon the 6 “Although the existence or degree of prejudice to moving party's reasons for seeking modification.” Id. (citing 7 Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 8 9 1985)). DISCUSSION United States District Court For the Northern District of California 10 11 Plaintiff argues that it could not reasonably complete the 12 deposition prior to the fact discovery deadline, because of Bank 13 of America’s opposition to the subpoena and because of Defendant’s 14 delay in identifying Bank of America as the only customer who 15 Defendant believes uses the accused feature. 16 Defendant argues that Plaintiff has not acted diligently for 17 18 a variety of reasons. 19 Plaintiff should have been able to identify Bank of America as a 20 customer using the infringing feature through documents produced 21 prior to August 12, 2011. 22 responses identify Bank of America as a third party with whom 23 However, the Court is not persuaded that While the original interrogatory Defendant may have had communications regarding the accused 24 feature, they do not identify Bank of America as being a customer 25 26 who uses that feature, and Plaintiff served a subpoena less than a 27 week after learning this information. 28 discovery efforts by both parties at the time, it does not appear 5 Further, given the ongoing 1 that Plaintiff lacked diligence by serving its first 2 interrogatories on July 1, 2011. 3 it agreed that the deposition could occur as far after the fact 4 discovery deadline as late October, and Defendant helped to create 5 some of the subsequent delay through its motion to quash the 6 second subpoena in mid-November. Defendant also represented that Plaintiff diligently filed this 7 motion five days after Defendant filed that motion to quash. 8 9 Accordingly, the Court finds that there is good cause to United States District Court For the Northern District of California 10 extend the fact discovery deadline for the limited purpose of 11 allowing Plaintiff to depose a representative of Bank of America. 12 13 14 CONCLUSION For the foregoing reasons, Plaintiff’s motion for relief from the case management schedule is GRANTED (Docket No. 108). The 15 fact discovery deadline is extended for the limited purpose of 16 allowing Plaintiff to take a deposition of a Bank of America 17 18 representative within twenty days after either of the following 19 events: (1) entry of an order in the Western District of North 20 Carolina authorizing a deposition; or (2) agreement by Bank of 21 America to make a representative available for deposition. 22 IT IS SO ORDERED. 23 24 Dated: 12/16/2011 25 CLAUDIA WILKEN United States District Judge 26 27 28 6

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